A quip that is often heard at gatherings international lawyers is “If I were [insert name of some prominent Bush Administration official], I wouldn’t plan on any more vacations in Europe.” Well, after all the talk of possible European prosecutions of one or more officials from the previous administration, the possibility has now taken a step closer towards becoming reality. CNN reports:

A senior Spanish judge has ordered prosecutors to investigate whether key Bush aides should be charged with crimes over the Guantanamo Bay detention center, a lawyer said Sunday.

Investigating magistrate Baltasar Garzon has passed a 98-page complaint to prosecutors that accuses former Attorney General Alberto R. Gonzales and five others [John C. Yoo, Douglas J. Feith, William J. Hayes II, Jay S. Bybee and David S. Addington] of being the legal architects of system that allowed torture in violation of international law, human rights lawyer Gonzalo Boye told CNN.

Prosecutors will review the document to determine if a crime has been committed.

The prosecutor’s office will make a decision within five days, said Boye, one of the report’s authors. Garzon accepted the complaint under Spanish law because there were several Spaniards at Guantanamo who allegedly suffered torture.

Judge Garzon is already familiar to many as the investigating magistrate who had issued the arrest warrant against Pinochet that started the extradition fracas.

That being said, it still remains to be seen whether prosecutors will actually move forward with a case. They may be reticent to do so if they think that issues of liability may be murky (that is, was this just bad legal advice or actual criminal activity) or if they want to avoid politically contentious issues (such as whether Spanish domestic courts are the right place to resolve the issues at hand).

Now, I know many of our readers have strong views as to whether those named above should or should not be prosecuted. I think those have been aired fairly well. What I’d like to ask–especially to any of our readers with some knowledge as to European courts–is whether you think the Spanish prosecutors are likely to pursue this case or not, and why. (Irrespective as to whether you think these folks should be prosecuted somewhere.) How accepted would it be that Spanish courts would have jurisdiction?

24 Responses

Response…If the US allows this judge to carry out an investigation of these, men Spain should be isolated from further US diplomatic relations and the judge prosecuted for his outlandish allegations.

3.29.2009
at 3:04 pm EST DNSmith

Chris, very good question – I’m very curious what any of our knowledgeable readers have to say about Spain and European courts on this. For my part, I’m going to consult our legal editors at my other gig, the Madrid Revista de Libros and ask if there are any experts there who could respond, and if there is anything interesting, I’ll put it up as a post.

3.29.2009
at 3:16 pm EST Kenneth Anderson

Response…of course these men who provided legal cover for Bush and his criminal syndicate to operate ought to be held responsible. it is a mockery of human decency to let them escape prosecution

3.29.2009
at 3:55 pm EST maurice kuttab, M.D.

Response..of course those men out to be charged with aiding torture. it is mockery of human decency if they are not!

3.29.2009
at 3:57 pm EST maurice kuttab, M.D.

What torture? The enemy combatants at Guantanamo were not mistreated. Some of the terrorists known to be part of 911 (3 I believe, were subject to some stiff interrogation measures but not torture. Not only is that Spanish judge arrogant, but he would like to apply his personal standards to everyone, to include a democratically elected government of the US.

3.29.2009
at 4:12 pm EST DNSmith

Didn’t something similar already happen in Belgium? I believe Bush was actually indicted back then and the charges then dropped through political preasure, yet I am not that sure though. Maybe if someone could offer additional info with regards to that case we can use it as a sort of precedent for this one.

3.29.2009
at 4:25 pm EST AGD

Response…f SPAIN,FRANCE ,ETC THEY DON’T LIKE THE U.S ANYWAY. BUT GUESS WHAT WHO WILL THE CALL ON IF THEY NEED HELP ?
…………………(ANSWER) UNITED STATES YES THAT IS CORRECT FOR ONE MILLION DOLLARS.

3.29.2009
at 4:26 pm EST john

According to Gonzalo Boyé, one of the four lawyers who wrote the lawsuit, the prosecutor would have little choice under Spanish law but to approve the prosecution.

I tend to agree: this case has much more chances to be pursued by the Prosecutor as
– Spain has quite some positive experience with their universal jurisdiction law
– The case doesn’t focus on ‘the big guys’ (Bush, Cheney, Rumsfeld)
– Most of the claims of the case are well documented by now through the released memo’s and are backed up to a certain extent by the Holder and Crawford statements
– But most importantly: there are strong links with Spain itself. To my knowledge at least 2 Spanish nationals have been held in Guantanamo, and claimed to be tortured there.

The current criminal case evolved out of an investigation into allegations, sustained by Spain’s Supreme Court, that Spanish citizens had been tortured in Guantánamo. This was the main reason why they were acquitted by the Supreme court in 2006 in Spain; the court said a lower court had used evidence obtained by Spanish intelligence officers in Guantanamo which “should be declared totally void and, as such, non-existent.”

Earlier Garzon had sought he deportation of two former British Guantánamo Bay detainees, Jamil el-Banna and Omar Deghayes, because they were thought to be related to the same case. However, in the beginning of this month, Garzón ruled that the pair were suffering severe mental and physical problems after their time in Guantánamo and were not fit to stand trial in Spain, basing his decision on medical reports on their condition provided by the British authorities. Garzon’s order blamed the medical condition of Banna for instance on the “five years [he spent] in secret prisons in Gambia and Afghanistan and latterly in Guantánamo … in inhumane conditions”, during which time he was tortured, resulting in the “progressive deterioration of his mental condition”.

AGD: that was a case against General Tommy Franks, accusing the commander of the US troops in Iraq of war crimes. Foreign Minister Louis Michel described the move then as an “abuse of the law”, adding that Brussels had “no pretensions to judge the United States”.

There was some pressure on the Belgian government, but it had already decided for itself that the provisions of the law went too far. At that time their universal jurisdiction law was the broadest one in the world; they changed it afterwards.

To all commentors: on Opinio Juris we strive to have (more or less) civil discussions following the standards of “netiquette”– so: no name calling, refrain from the equivalent of shouting (that is, posts in ALL CAPS), or profanity (veiled or otherwise).

The permanent bloggers at Opinio Juris reserve the right to remove any comment that is inappropriate.

3.29.2009
at 5:02 pm EST Chris Borgen

Mathias (or anyone else with some knowledge of these jurisdictional issues):

Do you think the Spanish prosecutors (or court) may undertake some type of jurisdictional balancing test– finding that although Spain could exercise jurisdiction, it chooses not to as another country (such as the U.S.) may have a greater interest in adjudication?

I know this is concept is one that is discussed in civil rather than criminal cases, but I am interested in getting a sense in whether it could come into play in potential cross-national prosecutions, especially where one state seems to be invoking jurisdiction to prescribe and to adjudicate based on passive personality.

3.29.2009
at 5:24 pm EST Chris Borgen

Does anyone (Spanish speakers out there) know if the legal basis for the complaint is actually universal jurisdiction? Or is it a form of passive personality jurisdiction based on the Spanish nationals detained at Guantanamo? For instance, does the complaint charge the Bush aides with acts of torture against non-Spanish nationals?
I recall reading somewhere that Spain has no passive personality concept in its domestic law, in which case the legal basis would appear to be universal jurisdiction—perhaps with the Spanish victims providing a “reasonableness” link to justify the exercise of universal jurisdiction in this particular case.
In the reasonableness connection, the Spanish universal jurisdiction law does contain a double jeopardy prohibition, which would deprive Spanish courts of jurisdiction if the state where the crime occurred or whose nationals were involved initiates prosecution first.

3.29.2009
at 6:00 pm EST Anthony Colangelo

Chris, that could be the case, although i don’t know enough about the Spanish system to answer you in detail. But Boyé hinted at this option in his interview in The Observer: “The only route of escape the prosecutor might have is to ask whether there is ongoing process in the US against these people.”

Anthony: Interesting point. As the investigation (as far as I know) was specific to Spanish nationals, I had assumed they were using passive personality. But, based on what you say, it seems that that assumption may be wrong and this may be “universal jurisdiction plus,” where nationality is being used to make universal jurisdiction seam more “reasonable.” Thanks for that insight.

3.29.2009
at 6:14 pm EST Chris Borgen

(Using my very basic Spanish) I think it’s definitely universal jurisdiction plus. The complaint refers to Spain’s domestic universal jurisdiction law (Title XXIV of the Spanish Code), obligations under the Geneva conventions, CAT and the ICC statute. It summarizes then in the end that the necessary conditions to justify jurisdiction are fulfilled:
“- Nature of the crime, which affects the international community, namely “Crimes against protected persons and property in an armed conflict”.
– Offences under the aforementioned treates, which are signed by Spain, have been incorporated into the domestic criminal law.
– There is a connection to national interests.”

Thanks Mathias! It looks like the victim list in the complaint includes a large number of non-Spaniards as well.

3.29.2009
at 6:49 pm EST Anthony Colangelo

As a Brit, with extradition experience, it would be interesting to see how the Cat 1 EAW process would hold up to the arrest and transfer of a high level US Official.

3.29.2009
at 8:44 pm EST Iheke Ndukwe

I think it will be interesting to see how US arguments in opposition to Spanish jurisdiction will affect the interpretation and application of the US Extraterritorial Torture Statute (recently invoked to convict Chuckie Taylor).

Mary, as for the impact of this case on the Chuckie Taylor prosecution and other cases of U.S. extraterritorial jurisdiction, I agree that it will be interesting to watch.

The district court order dismissing Taylor’s motion to dismiss declined to rule on a theory of universal jurisdiction, finding that Taylor is a presumptive U.S. citizen (evidently he was born in Massachusetts), thus providing an adequate “nexus” in satisfaction of the fifth amendment due process requirement that the extraterritorial application of U.S. law is not arbitrary or unfair.

However, as you know, the Torture Act (as well as a large number of U.S. laws, including a variety of anti-terrorism laws) is not limited to U.S. nationals and contemplates U.S. jurisdiction over non-nationals for acts committed abroad with no U.S. nexus, save for the presence of the accused on U.S. territory at some later point (perhaps including via male captus bene denentus?).

One could view this last jurisdictional hook as a universal U.S. prescriptive jurisdiction over non-nationals abroad that’s triggered once the U.S. has personal (adjudicative) jurisdiction over the accused based on presence. Otherwise, you might run into the retroactivity problem of saying we didn’t have jurisdiction to apply our laws to you at the time you committed your act, but now that you’re here, you’re subject to our criminal laws. A fifth-amendment challenge would seem strong in that respect, because notice of the applicable law at the time of the conduct factors heavily into the Supreme Court’s due process analysis of legislative jurisdiction in the domestic choice-of-law jurisprudence. The government’s way around that challenge would be to rely on universal jurisdiction, in essence: there is nothing arbitrary or unfair about applying through national procedures the substance of an international law to which you are already and always subject, and thus, on notice.

But a problem with that argument, raised by Taylor’s defense team (albeit in relation to Congress’s power to pass the Torture Act pursuant to the Necessary and Proper Clause), is that—at least according to the district court in the Taylor case—the Torture Act’s definition of torture looks broader than the CAT definition. The defendant’s counter-argument thus being: I may be on notice of the international law against torture, but not of your more expansive national law definition of torture. Indeed, this may be where the real action is at for universal jurisdiction going forward.

3.31.2009
at 10:03 am EST Anthony Colangelo

Response…the argument that there was no torture is based on some ridiculous disregard to basic human rights and neologism of psychopathic layers their definition of torture was: actions which would lead to death or damage to a major body organ. these psychopaths would claim that cutting somebody’s finger or electrical wiring is not torture . how about water boarding which has always been recognized as torture. American citizens must demand that U.S. laws which prohibit torture and war crimes must be enforced. Bring those people to justice in U.S. It is certainly a shame that american justice sysem cowers while spanish courts do the right thing!!!

4.01.2009
at 3:12 pm EST maurice c kuttab, M.D.

these individuals will never leave the good ol’ USA again. any unbiased review of the public record from the Red Cross to Cheney on Fox will conclude war crimes were committed. i will be disappointed if the spanish don’t follow through.

christopher hitchen’s best book, the trials of kissinger, recount an amusing anecdote of the good dr. fleeing france only hour after arrival after being alerted to the fact that a subpoena had been issued for him to appear and answer questions of war crimes.

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